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EXHIBIT 10.02
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
Amendment to License Agreement
Effective as of September 1, 2000
Re: Harvard Cases 956; 963
President and Fellows of Harvard College (hereinafter, "HARVARD") and Ontogeny,
Inc., now Curis, Inc., by virtue of Ontogeny's merger into Curis, Inc. on July
31, 2000, (hereinafter, "LICENSEE") hereby amend the License Agreement which was
effective February 9, 1995, and amended effective February 9, 1995 and January
1, 1997, and assigned by Ontogeny, Inc. to Curis, Inc. (the "Agreement") as
follows:
1. After the fourth paragraph of page 1, to insert a paragraph to read:
Whereas HARVARD and LICENSEE have entered in and are parties to a license
agreement dated September 1, 2000 ("the 2000 License Agreement"),
identified and reproduced in Appendix C, which confers to LICENSEE
commercial rights to technology that may be related to the subject matter
of PATENT RIGHTS; and
2. To modify Section 3.3(a) to read:
3.3(a) LICENSEE shall pay HARVARD during the term of this license a royalty
of [**] percent ([**]%) of NET SALES of all ROYALTY PRODUCTS sold by
LICENSEE and its AFFILIATES; provided, however, that in the case of
ROYALTY PRODUCTS covered by a pending patent claim, such royalty of
[**] percent ([**]%) shall be due and payable as follows: [**]
percent ([**]%) shall be payable to HARVARD pursuant to Section
4.4(a), and the remainder shall accumulate and shall not be required
to be paid by LICENSEE to HARVARD unless and until such claim is
issued as part of a patent in the applicable jurisdiction. A ROYALTY
PRODUCT that is a ROYALTY PRODUCT solely as a result of any such
claim that has been abandoned, has been rejected by an administrative
agency from which no appeal can be taken or has been pending for more
than five years in any jurisdiction shall cease to be a ROYALTY
PRODUCT in such jurisdiction unless and until such claim is issued as
part of a patent.
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
In the event that a ROYALTY PRODUCT as contemplated in this Agreement
is also a royalty product as defined in Section 1.8 of the 2000
License Agreement ("2000 Royalty Product"), LICENSEE may reduce the
royalty due to HARVARD on such ROYALTY PRODUCT by [**] percent
([**]%) of the royalty due to HARVARD on such 2000 Royalty Product as
specified in Section 4.2(a) of the 2000 License Agreement. In no
event shall the royalty due to HARVARD on such ROYALTY PRODUCT be
reduced by more than [**] percent ([**]%) as a result of such
reduction.
In the event that a ROYALTY PRODUCT as contemplated in this Agreement
is also a milestone product as defined in Section 1.5 of the 2000
License Agreement ("2000 Milestone Product"), LICENSEE may reduce the
royalty due to HARVARD on such ROYALTY PRODUCT to [**] percent
([**]%) of the royalty due to HARVARD on such ROYALTY PRODUCT.
3. To modify Section 3.3(b) to read:
3.3(b) If LICENSEE grants a sublicense under this Agreement to a sublicensee
(other than an AFFILIATE) for development of a product in a field as
to which LICENSEE or an AFFILIATE has committed or provides a written
commitment to devote within the succeeding [**] ([**]) month period
the resources equivalent to the full time of at least [**] of its own
FTEs, [**] having an advanced scientific degree (a "Joint Field"),
LICENSEE shall pay to HARVARD [**] percent ([**]%) of any royalties,
fees or other amounts received by LICENSEE or its AFFILIATES as a
result of the sublicensee's development and/or sale of ROYALTY
PRODUCTS or MILESTONE PRODUCTS, excluding: (i) amounts paid in
partial or full consideration of equity of LICENSEE or its
AFFILIATES; (ii) amounts paid to fund research and development
activities conducted by LICENSEE or its AFFILIATES; and (iii) non-
monetary consideration, including, without limitation, intellectual
property rights, noncompetition covenants and the like.
If LICENSEE grants a sublicense under this Agreement to a sublicensee
(other than an AFFILIATE) for development of a product in a field
other than a Joint Field, LICENSEE shall pay to HARVARD [**] percent
([**]%) of any royalties, fees or other amounts received by the
LICENSEE or its AFFILIATES as a result of the sublicensee's
development and/or sale of ROYALTY PRODUCTS or MILESTONE PRODUCTS,
excluding: (i) amounts paid in partial or full consideration of
equity of LICENSEE or its AFFILIATES; (ii) amounts paid to fund
research and development activities conducted by LICENSEE or its
AFFILIATES; and (iii) non-monetary consideration,
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
including, without limitation, intellectual property rights,
noncompetition covenants and the like.
In the event a sublicense granted under this Agreement also includes
a sublicense to patent rights contained in the 2000 License
Agreement, then LICENSEE may reduce the royalty on sublicense income
due in this Section to [**] percent ([**]%)]or [**] percent ([**]%),
respectively.
LICENSEE shall not grant a sublicense hereunder (other than to an
AFFILIATE) pursuant to a transaction in which LICENSEE surrenders
substantially all of its legal rights and economic interest in the
PATENT RIGHTS and ROYALTY PRODUCTS to a third party in exchange for
the transfer by such third party to LICENSEE of rights to a different
technology or products.
4. To modify Section 3.3(e) to read:
3.3(e) In the case of MILESTONE PRODUCTS, LICENSEE shall pay the following
payments and shall not pay the royalties specified in Section 3.3(a).
Such payments are in recognition of LICENSEE's early and exclusive
use of the licensed subject matter:
Date of First Commercial Sale of $[**]
MILESTONE PRODUCT
Cumulative Sales of MILESTONE $[**]
PRODUCT of $[**]
Cumulative Sales of MILESTONE $[**]
PRODUCT of $[**]
If this license is terminated by LICENSEE or its AFFILIATES, or is
converted a non-exclusive license or terminated by HARVARD for a
financial default, the above milestone payments shall still be due
with respect to all MILESTONE PRODUCTS identified by LICENSEE or its
AFFILIATES prior to such termination or conversion. If this license
is converted to a non-exclusive license or terminated by HARVARD for
any reason other than a financial default, the above milestone
payments will be due on only the first MILESTONE PRODUCT sold after
such termination or conversion and identified prior to such
termination and conversion.
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
In the event that a MILESTONE PRODUCT as contemplated in this
Agreement is also a 2000 Milestone Product, LICENSEE may reduce each
milestone payment due to HARVARD on such MILESTONE PRODUCT by [**]
percent ([**]%) of the corresponding milestone payment due to HARVARD
on such 2000 Milestone Product as specified in Section 4.4(a) of the
2000 License Agreement. In no event shall any milestone payment due
to HARVARD on such MILESTONE PRODUCT be reduced by more than [**]
percent ([**]%) as a result of such reduction.
In the event that a MILESTONE PRODUCT as contemplated in this
Agreement is also a 2000 Royalty Product, LICENSEE may reduce each
milestone payment due to HARVARD on such MILESTONE PRODUCT to [**]
percent ([**]%) of the milestone payment due to HARVARD on such
MILESTONE PRODUCT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized representatives.
President And Fellows Curis, Inc.
of Harvard College
s/s Joyce Brinton s/s Bruce A. Leicher
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Joyce Brinton, Director Signature
Office for Technology and
Trademark Licensing
Bruce A. Leicher
-------------------------------------
Name
Sept. 11, 2000 Vice President and General Counsel
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Date Title
September 8, 2000
-------------------------------------
Date
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